That there ought to be one court of supreme and final
jurisdiction is a proposition which has not been, and is not
likely to be contested. The reasons for it have been assigned
in another place, and are too obvious to need repetition.
The only question that seems to have been raised
concerning it, is whether it ought to be a distinct body, or
a branch of the legislature. The same contradiction is observable
in regard to this matter, which has been remarked
in several other cases. The very men who object to the
senate as a court of impeachments, on the ground of an
improper intermixture of powers, advocate, by implication
at least, the propriety of vesting the ultimate decision of
all causes in the whole, or in a part of the legislative body.

The arguments or rather suggestions, upon which this
charge is founded, are to this effect: "The authority of the
proposed supreme court of the United States, which is to
be a separate and independent body, will be superior to
that of the legislature. The power of construing the laws,
according to the spirit of the constitution, will enable that
court to mould them into whatever shape it may think
proper; especially as its decisions will not be in any manner
subject to the revision or correction of the legislative body.
This is as unprecedented as it is dangerous. In Britain, the
judicial power in the last resort, resides in the house of
lords, which is a branch of the legislature; and this part of
the British government has been imitated in the state constitutions
in general. The parliament of Great-Britain, and
the legislatures of the several states, can at any time rectify
by law, the exceptionable decisions of their respective
courts. But the errors and usurpations of the supreme
court of the United States will be uncontrolable and remediless."
This, upon examination, will be found to be altogether
made up of false reasoning upon misconceived fact.

In the first place, there is not a syllable in the plan under
consideration, which directly empowers the national courts
to construe the laws according to the spirit of the constitution,
or which gives them any greater latitude in this respect,
than may be claimed by the courts of every state. I
admit however, that the constitution ought to be the standard
of construction for the laws, and that wherever there
is an evident opposition, the laws ought to give place to
the constitution. But this doctrine is not deducible from
any circumstance peculiar to the plan of the convention;
but from the general theory of a limited constitution; and
as far as it is true, is equally applicable to most, if not to
all the state governments. There can be no objection
therefore, on this account, to the federal judicature, which
will not lie against the local judicatures in general, and
which will not serve to condemn every constitution that
attempts to set bounds to the legislative discretion.

But perhaps the force of the objection may be thought
to consist in the particular organization of the proposed
supreme court; in its being composed of a distinct body of
magistrates, instead of being one of the branches of the
legislature, as in the government of Great-Britain and in
that of this state. To insist upon this point, the authors of
the objection must renounce the meaning they have laboured
to annex to the celebrated maxim requiring a separation
of the departments of power. It shall nevertheless
be conceded to them, agreeably to the interpretation given
to that maxim in the course of these papers, that it is not
violated by vesting the ultimate power of judging in a part
of the legislative body. But though this be not an absolute
violation of that excellent rule; yet it verges so nearly upon
it, as on this account alone to be less eligible than the mode
preferred by the convention. From a body which had had
even a partial agency in passing bad laws, we could rarely
expect a disposition to temper and moderate them in the
application. The same spirit, which had operated in making
them, would be too apt to operate in interpreting
them: Still less could it be expected, that men who had
infringed the constitution, in the character of legislators,
would be disposed to repair the breach, in the character
of judges. Nor is this all: Every reason, which recommends
the tenure of good behaviour for judicial offices, militates
against placing the judiciary power in the last resort in a
body composed of men chosen for a limited period. There
is an absurdity in referring the determination of causes in
the first instance to judges of permanent standing, and in
the last to those of a temporary and mutable constitution.
And there is a still greater absurdity in subjecting the decisions
of men selected for their knowledge of the laws,
acquired by long and laborious study, to the revision and
control of men, who for want of the same advantage cannot
but be deficient in that knowledge. The members of
the legislature will rarely be chosen with a view to those
qualifications which fit men for the stations of judges; and
as on this account there will be great reason to apprehend
all the ill consequences of defective information; so on account
of the natural propensity of such bodies to party
divisions, there will be no less reason to fear, that the pestilential
breath of faction may poison the fountains of justice.
The habit of being continually marshalled on opposite
sides, will be too apt to stifle the voice both of law and of
equity.

These considerations teach us to applaud the wisdom of
those states, who have committed the judicial power in the
last resort, not to a part of the legislature, but to distinct
and independent bodies of men. Contrary to the supposition
of those, who have represented the plan of the convention
in this respect as novel and unprecedented, it is
but a copy of the constitutions of New-Hampshire, Massachusetts,
Pennsylvania, Delaware, Maryland, Virginia,
North-Carolina, South-Carolina and Georgia; and the
preference which has been given to these models is highly
to be commended.

It is not true, in the second place, that the parliament of
Great Britain, or the legislatures of the particular states,
can rectify the exceptionable decisions of their respective
courts, in any other sense than might be done by a future
legislature of the United States. The theory neither of the
British, nor the state constitutions, authorises the revisal of
a judicial sentence, by a legislative act. Nor is there any
thing in the proposed constitution more than in either of
them, by which it is forbidden. In the former as well as in
the latter, the impropriety of the thing, on the general
principles of law and reason, is the sole obstacle. A legislature
without exceeding its province cannot reverse a determination
once made, in a particular case; though it may
prescribe a new rule for future cases. This is the principle,
and it applies in all its consequences, exactly in the same
manner and extent, to the state governments, as to the
national government, now under consideration. Not the
least difference can be pointed out in any view of the subject.

It may in the last place be observed that the supposed
danger of judiciary encroachments on the legislative authority,
which has been upon many occasions reiterated, is
in reality a phantom. Particular misconstructions and contraventions
of the will of the legislature may now and then
happen; but they can never be so extensive as to amount
to an inconvenience, or in any sensible degree to affect the
order of the political system. This may be inferred with
certainty from the general nature of the judicial power;
from the objects to which it relates; from the manner in
which it is exercised; from its comparative weakness, and
from its total incapacity to support its usurpations by
force. And the inference is greatly fortified by the consideration
of the important constitutional check, which the
power of instituting impeachments, in one part of the legislative
body, and of determining upon them in the other,
would give to that body upon the members of the judicial
department. This is alone a complete security. There
never can be danger that the judges, by a series of deliberate
usurpations on the authority of the legislature,
would hazard the united resentment of the body entrusted
with it, while this body was possessed of the means of punishing
their presumption by degrading them from their
stations. While this ought to remove all apprehensions on
the subject, it affords at the same time a cogent argument
for constituting the senate a court for the trial of impeachments.

Having now examined, and I trust removed the objections
to the distinct and independent organization of the
supreme court, I proceed to consider the propriety of the
power of constituting inferior courts,1
and the relations
which will subsist between these and the former.

The power of constituting inferior courts is evidently
calculated to obviate the necessity of having recourse to
the supreme court, in every case of federal cognizance. It
is intended to enable the national government to institute
or authorise in each state or district of the United States, a
tribunal competent to the determination of matters of national
jurisdiction within its limits.

But why, it is asked, might not the same purpose have
been accomplished by the instrumentality of the state
courts? This admits of different answers. Though the fitness
and competency of those courts should be allowed in
the utmost latitude; yet the substance of the power in
question, may still be regarded as a necessary part of the
plan, if it were only to empower the national legislature to
commit to them the cognizance of causes arising out of the
national constitution. To confer the power of determining
such causes upon the existing courts of the several states,
would perhaps be as much "to constitute tribunals," as to
create new courts with the like power. But ought not a
more direct and explicit provision to have been made in
favour of the state courts? There are, in my opinion, substantial
reasons against such a provision: The most discerning
cannot foresee how far the prevalency of a local
spirit may be found to disqualify the local tribunals for the
jurisdiction of national causes; whilst every man may discover
that courts constituted like those of some of the
states, would be improper channels of the judicial authority
of the union. State judges, holding their offices during
pleasure, or from year to year, will be too little independent
to be relied upon for an inflexible execution of the
national laws. And if there was a necessity for confiding
the original cognizance of causes arising under those laws
to them, there would be a correspondent necessity for
leaving the door of appeal as wide as possible. In proportion
to the grounds of confidence in, or diffidence of the
subordinate tribunals, ought to be the facility or difficulty
of appeals. And well satisfied as I am of the propriety of
the appellate jurisdiction in the several classes of causes to
which it is extended by the plan of the convention, I
should consider every thing calculated to give in practice,
an unrestrained course to appeals as a source of public and
private inconvenience.

I am not sure but that it will be found highly expedient
and useful to divide the United States into four or five, or
half a dozen districts; and to institute a federal court in
each district, in lieu of one in every state. The judges of
these courts, with the aid of the state judges, may hold
circuits for the trial of causes in the several parts of the
respective districts. Justice through them may be administered
with ease and dispatch; and appeals may be safely
circumscribed within a very narrow compass. This plan
appears to me at present the most eligible of any that
could be adopted, and in order to it, it is necessary that
the power of constituting inferior courts should exist in
the full extent in which it is to be found in the proposed
constitution.

These reasons seem sufficient to satisfy a candid mind,
that the want of such a power would have been a great
defect in the plan. Let us now examine in what manner
the judicial authority is to be distributed between the supreme
and the inferior courts of the union.

The supreme court is to be invested with original jurisdiction,
only "in cases affecting ambassadors, other public
ministers and consuls, and those in which A STATE shall be
a party." Public ministers of every class, are the immediate
representatives of their sovereigns. All questions in which
they are concerned, are so directly connected with the
public peace, that as well for the preservation of this, as
out of respect to the sovereignties they represent, it is both
expedient and proper, that such questions should be submitted
in the first instance to the highest judicatory of the
nation. Though consuls have not in strictness a diplomatic
character, yet as they are the public agents of the nations
to which they belong, the same observation is in a great
measure applicable to them. In cases in which a state
might happen to be a party, it would ill suit its dignity to
be turned over to an inferior tribunal.

Though it may rather be a digression from the immediate
subject of this paper, I shall take occasion to mention
here, a supposition which has excited some alarm upon
very mistaken grounds: It has been suggested that an assignment
of the public securities of one state to the citizens
of another, would enable them to prosecute that state in
the federal courts for the amount of those securities. A
suggestion which the following considerations prove to be
without foundation.

It is inherent in the nature of sovereignty, not to be
amenable to the suit of an individual without its consent.
This is the general sense and the general practice of mankind;
and the exemption, as one of the attributes of sovereignty,
is now enjoyed by the government of every state
in the union. Unless therefore, there is a surrender of this
immunity in the plan of the convention, it will remain with
the states, and the danger intimated must be merely ideal.
The circumstances which are necessary to produce an
alienation of state sovereignty, were discussed in considering
the article of taxation, and need not be repeated
here. A recurrence to the principles there established will
satisfy us, that there is no colour to pretend that the state
governments, would by the adoption of that plan, be divested
of the privilege of paying their own debts in their
own way, free from every constraint but that which flows
from the obligations of good faith. The contracts between
a nation and individuals are only binding on the conscience
of the sovereign, and have no pretensions to a
compulsive force. They confer no right of action independent
of the sovereign will. To what purpose would it be to
authorise suits against states, for the debts they owe? How
could recoveries be enforced? It is evident that it could not
be done without waging war against the contracting state;
and to ascribe to the federal courts, by mere implication,
and in destruction of a pre-existing right of the state governments,
a power which would involve such a consequence,
would be altogether forced and unwarrantable.

Let us resume the train of our observations; we have
seen that the original jurisdiction of the supreme court
would be confined to two classes of causes, and those of a
nature rarely to occur. In all other causes of federal cognizance,
the original jurisdiction would appertain to the
inferior tribunals, and the supreme court would have
nothing more than an appellate jurisdiction, "with such exceptions,
and under such regulations as the congress shall
make."

The propriety of this appellate jurisdiction has been
scarcely called in question in regard to matters of law; but
the clamours have been loud against it as applied to matters
of fact. Some well intentioned men in this state, deriving
their notions from the language and forms which obtain
in our courts, have been induced to consider it as an
implied supersedure of the trial by jury, in favour of the
civil law mode of trial, which prevails in our courts of admiralty,
probates and chancery. A technical sense has been
affixed to the term "appellate," which in our law parlance
is commonly used in reference to appeals in the course of
the civil law. But if I am not misinformed, the same meaning
would not be given to it in any part of New-England.
There an appeal from one jury to another is familiar both
in language and practice, and is even a matter of course,
until there have been two verdicts on one side. The word
"appellate" therefore will not be understood in the same
sense in New-England as in New-York, which shews the
impropriety of a technical interpretation derived from the
jurisprudence of any particular state. The expression
taken in the abstract, denotes nothing more than the
power of one tribunal to review the proceedings of another,
either as to the law or fact, or both. The mode of
doing it may depend on ancient custom or legislative provision,
(in a new government it must depend on the latter)
and may be with or without the aid of a jury, as may be
judged adviseable. If therefore the re-examination of a
fact, once determined by a jury, should in any case be admitted
under the proposed constitution, it may be so regulated
as to be done by a second jury, either by remanding
the cause to the court below for a second trial of the fact,
or by directing an issue immediately out of the supreme
court.

But it does not follow that the re-examination of a fact
once ascertained by a jury, will be permitted in the supreme
court. Why may it not be said, with the strictest
propriety, when a writ of error is brought from an inferior
to a superior court of law in this state, that the latter has
jurisdiction of the fact, as well as the law? It is true it cannot
institute a new enquiry concerning the fact, but it takes
cognizance of it as it appears upon the record, and pronounces
the law arising upon it.2
This is jurisdiction of
both fact and law, nor is it even possible to separate them.
Though the common law courts of this state ascertain disputed
facts by a jury, yet they unquestionably have jurisdiction
of both fact and law; and accordingly, when the
former is agreed in the pleadings, they have no recourse
to a jury, but proceed at once to judgment. I contend
therefore on this ground, that the expressions, "appellate
jurisdiction, both as to law and fact," do not necessarily
imply a re-examination in the supreme court of facts decided
by juries in the inferior courts.

The following train of ideas may well be imagined to
have influenced the convention in relation to this particular
provision. The appellate jurisdiction of the supreme
court (may it have been argued) will extend to causes determinable
in different modes, some in the course of the
COMMON LAW, and others in the course of the CIVIL LAW.
In the former, the revision of the law only, will be, generally
speaking, the proper province of the supreme court;
in the latter, the re-examination of the fact is agreeable to
usage, and in some cases, of which prize causes are an example,
might be essential to the preservation of the public
peace. It is therefore necessary, that the appellate jurisdiction
should, in certain cases, extend in the broadest sense
to matters of fact. It will not answer to make an express
exception of cases, which shall have been originally tried
by a jury, because in the courts of some of the states, all
causes are tried in this mode;3
and such an exception
would preclude the revision of matters of fact, as well
where it might be proper, as where it might be improper.
To avoid all inconveniencies, it will be safest to declare
generally, that the supreme court shall possess appellate
jurisdiction, both as to law and fact, and that this jurisdiction
shall be subject to such exceptions and regulations as
the national legislature may prescribe. This will enable the
government to modify it in such a manner as will best answer
the ends of public justice and security.

This view of the matter, at any rate puts it out of all
doubt that the supposed abolition of the trial by jury, by
the operation of this provision, is fallacious and untrue.
The legislature of the United States would certainly have
full power to provide that in appeals to the supreme court
there should be no re-examination of facts where they had
been tried in the original causes by juries. This would certainly
be an authorised exception; but if for the reason
already intimated it should be thought too extensive, it
might be qualified with a limitation to such causes only as
are determinable at common law in that mode of trial.

The amount of the observations hitherto made on the
authority of the judicial department is this--that it has
been carefully restricted to those causes which are manifestly
proper for the cognizance of the national judicature,
that in the partition of this authority a very small portion
of original jurisdiction has been reserved to the supreme
court, and the rest consigned to the subordinate tribunals--that
the supreme court will possess an appellate jurisdiction
both as to law and fact in all the cases referred
to them, but subject to any exceptions and regulations which
may be thought adviseable; that this appellate jurisdiction
does in no case abolish the trial by jury, and that an ordinary
degree of prudence and integrity in the national
councils will insure us solid advantages from the establishment
of the proposed judiciary, without exposing us to
any of the inconveniencies which have been predicted
from that source.

This power has been absurdly represented as intended to abolish
all the county courts in the several states, which are commonly
called inferior courts. But the expressions of the constitution are
to constitute "tribunals INFERIOR TO THE SUPREME COURT," and the
evident design of the provision is to enable the institution of local
courts subordinate to the supreme, either in states or larger districts.
It is ridiculous to imagine that county courts were in contemplation.

This word is a compound of JUS and DICTIO, juris, dictio, or a
speaking or pronouncing of the law.

I hold that the states will have concurrent jurisdiction with the
subordinate federal judicatories, in many cases of federal cognizance,
as will be explained in my next paper.